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UNITED STATES DISTRICT COURTDISTRICT OF MINNESOTA
CAPITOL RECORDS INC.
et al.
,
Plaintiffs
,
v.
 JAMMIE THOMAS,
 Defendant.
Case No. 06-cv-1497 (MJD/RLE)
DEFENDANT’S MOTION TO RECONSIDER REMITTITUR ORDER
In her motion for new trial, remittitur, and to alter or amend the judgment,Defendant Jammie Thomas asked this Court to strike down the award of statutorydamages as inconsistent with the Due Process Clause and, in the alternative, remitthe jury’s award of statutory damages as a matter of federal common law.
See
 Docket No. 344 (motion). This Court granted Defendant’s motion in part byproposing a remittitur of the statutory damages to three times the statutoryminimum, or $2,250 per copyrighted work.
See
Docket No. 366 (order). Therewas no ruling on Defendant’s constitutional challenge in that order.
See id.
Inlight of Plaintiffs’ refusal to accept the proposed remittitur,
see
Docket No. 371,Defendant requests that this Court reconsider its order on her motion for new trial,remittitur, and to alter or amend the judgment and, instead of ordering remittitur,reach the merits of her constitutional challenge.
See
Docket No. 344 at 3–10(pages of motion containing constitutional challenge); Docket No. 363 (reply brief further supporting constitutional challenge).
Case 0:06-cv-01497-MJD-LIB Document 405 Filed 10/15/10 Page 1 of 4
 
 
After Defendant briefed her constitutional challenge in connection with hermotion for new trial, remittitur, and to alter or amend the judgment, the UnitedStates District Court for the District of Massachusetts issued an opinion in the onlyother individual file-sharing case to go to verdict that adopts much of Defendant’sargument.
See
Ex. A (Judge Gertner’s opinion). Judge Gertner agreed withDefendant that an award of statutory damages that is intended to punish or determust be reviewed under the same standard that applies to common-law punitivedamages, namely, the standard announced in
 BMW of North America, Inc. v. Gore
,517 U.S. 559 (1996).
See
Ex. A at 25–29. Applying
Gore
, Judge Gertner heldthat the maximum constitutional award of statutory damages in a file-sharing caseis three times the statutory minimum.
See
 
id.
at 52–55.Judge Gertner stated that she was reaching the merits of the constitutionalchallenge because of the recording-industry plaintiffs’ unwillingness to accept aremittitur, which would have resulted in another trial on damages.
See
 
id.
at 3. Inour case, as in Judge Gertner’s case, there is no reason to expect that a third trialon damages will lead to a result so different from the result in the first or secondtrials in this case or in the trial before Judge Gertner that the constitutionalchallenge would be materially different. Moreover, no result in this trial couldmoot the constitutional challenge entirely, since Defendant contends that even anaward of minimum statutory damages would violate the Due Process Clause.
See
 Docket No. 344 at 4 (motion challenging even an award of minimum statutorydamages).
Case 0:06-cv-01497-MJD-LIB Document 405 Filed 10/15/10 Page 2 of 4
 
A “district court has the inherent power to reconsider and modify aninterlocutory order any time prior to the entry of judgment.”
 Murr Plumbing, Inc.v. Scherer Brothers Financial Services Co.
, 48 F.3d 1066, 1070 (8th Cir. 1995).
 
Because a third trial on damages would add nothing to this Court’s considerationof the constitutional challenge, and because this Court must ultimately rule on thatchallenge at some point, Defendant respectfully requests that this Court set asideits earlier remittitur order, rule on Defendant’s constitutional challenge, andthereby eliminate the need for the coming trial on damages.
See Ross v. KansasCity Power & Light Co.
, 293 F.3d 1041, 1049–50 (8th Cir. 2002) (when damagesare reduced on a constitutional ground, the plaintiff has no Seventh Amendmentright to reject the reduction and demand a new trial on damages).Defendant requests the following specific relief. If this Court agrees withDefendant that even an award of minimum statutory damages is unconstitutional,then it should amend the earlier judgment so that Plaintiffs take nothing. If thisCourt agrees with Defendant that the award of statutory damages wasunconstitutional but believes that a lesser amount of statutory damages would beconstitutional, then what this Court should do depends on what the maximumamount is that this Court believes would be constitutional. If this Court believesthat the maximum constitutional amount is less than $750 per song, then this Courtshould still amend the earlier judgment so that Plaintiffs take nothing. This isbecause the Copyright Act does not authorize an award of statutory damages of less than $750 per song. If this Court believes that the maximum constitutional
Case 0:06-cv-01497-MJD-LIB Document 405 Filed 10/15/10 Page 3 of 4
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